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The Minimum Wages Act, 1948
Section 3 in The Minimum Wages Act, 1948
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Madras High Court
Tamil Nadu Spinning Mills ... vs The State Of Tamil Nadu on 30 April, 2009

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30-04-2009

CORAM:

THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN

W.P.Nos.28741, 28749, 28782, 28783 and 28805 of 2008

And

M.P.Nos.1,2, 1, 2, 1, 2, 1 and 2 of 2008

W.P.No.28741 of 2008:

Tamil Nadu Spinning Mills Association,

No.24, 11th Cross Street,

Thiruvalluvar Nagar,

Spencer Compound, Dindigul

Represented by its Chief Advisor,

K.Venkatachalam .. Petitioner

Vs.

1. The State of Tamil Nadu,

Represented by its Secretary to Government,

Labour and Employment Department,

Fort St. George,

Chennai-9.

2.Coimbatore District Mill Workers' Union

(CITU), No.127, Anupparpalayam,

Coimbatore  641 009.

3.Coimbatore (East) District Panchalai

Thozhilalar Sangam,

Thiyagi Palanisamy Nilayam,

No.447, Avinashi Road,

Tiruppur  641 607.

4. Tamil Nadu Joint Action Council of

Textile Trade Unions, represented by

its Secretary, No.27, Mosque Street,

Chepauk, Chennai  600 005.

5.The District Anna Panchalai Thozhilalar

Sangam (Regn. No.14/Anna) represented

by its District Secretary Thiru V.Jeyaraman,

Having office at 4D, Scheme Road,

Dindigul-1.

6.The Kovai District Panchalai Anna

Thozhilalar Sangam (Relgn.No.292/76),

represented by its President

Thiru V.K.Dhanagopalan.

7.The Coimbatore District Textile Workers

Union (HMS) represented by its

General Secretary,

No.2212 Trichy Road,

Singanallur,

Coimbatore  641 005.

8.Coimbatore District Mill Workers,

Union (AITUC) represented by its

Secretary, No.99, R.K.Street,

Kattor,

Coimbatore - 641 009.

9.Indian National Trade Union Congress

(Tamil Nadu Branch) represented by

its Vice President, No.45, Royapettah

High Road, Chennai  600 014.

10.Kovai Mavatta Panjalai Anna Thozhilalar

Sangam, represented by its President,

No.102, Grey Town,

Coimbatore  641 018.

11.Coimbatore Periyar Districts Dravida Panchalai

Thozhilalar Munnetra Sangam, represented

by its General Secretary, No.69, Tata

Bad Street-3,

Coimbatore  641 012.

12.Dindigul Panchalai Marumalarchi Thozhilalar

Munnani, represented by its General

Secretary (Regn. No.112/Anna),

No.49-G, East Arokiamadha Street,

Nagal Nagar Post,

Dindigul  624 003. .. Respondents

(Respondents 2 and 3 impleaded as per

Court order dated 5.1.2009 in M.P.No.3 of

2008)

(Respondent-4 impleaded as per Court

Order dated 7.1.2009 in M.P.No.1 of 2009)

(Respondents-5 & 6 impleaded as per

Court order dated 12.1.2009 in M.P.No.2 of 2009)

(Respondents-7 to 12 impleaded as per Court

Order dated 20.1.2009 in M.P.Nos.3 & 4 of 2009)

Writ petition is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records of the respondent relating to the GO(2D) No.61, Labour and Employment(J1) Department dated 7.11.2008 and quash the same as unlawful, ultra vires the powers of the respondent. For Petitioners : Mr.AL.Somayaji,

Mr.Vijay Narayan,

Mr.T.R. Rajagopalan, Senior Counsel.

For State of Tamil Nadu : Mr.P.S.Raman, Additional

Advocate General.

For Trade Unions : Mr.N.G.R.Prasad,

Mr.V.Prakash

and Ms.D.Nagasaila

COMMON ORDER

While 4 writ petitions arise out of a challenge to a final notification issued by the Government of Tamil Nadu, fixing minimum rate of wages payable to the apprentices engaged in the employment in Textile Mills, one writ petition challenges the vires of Section 3(3)(a)(iii) of the Minimum Wages Act, 1948, on the ground that no minimum rate of wages can be fixed for apprentices.

2. I have heard Mr.AL.Somayaji, Mr.Vijay Narayan and Mr.T.R. Rajagopalan, learned Senior Counsel for the petitioners, Mr.P.S.Raman, learned Additional Advocate General for the State of Tamil Nadu, Mr.P. Balamurugan, learned Central Government Standing Counsel, and Mr.N.G.R.Prasad, Mr.V.Prakash and Ms.D.Nagasaila, learned counsel appearing for the Trade Unions impleaded as parties to the writ petitions.

3. In February 2006, the State Textile Workers Federation made a representation through the Centre of Indian Trade Unions (CITU), to the Government of Tamilnadu, alleging that the Textile Mills in Tamilnadu were indulging in an exploitative practice of engaging adolescent girls under a scheme known as Thirumagal Thirumana Thittam and that the same amounted in fact, to forced labour. Thereafter, the Centre of Indian Trade Unions (CITU) filed a writ petition in W.P.No.5453 of 2006 on the file of the Madurai Bench of this court seeking a direction to the Government to consider their representation. But the said writ petition was dismissed by a judgment dated 7-7-2006 {2007 (2) LLJ 640} by the Division Bench, holding that a roving enquiry cannot be ordered into the matter since the grievance of the Union could be redressed by the concerned labour authorities.

4. Subsequently, a preliminary notification was issued by the Government of Tamil Nadu in G.O.Ms.No.67, Labour and Employment Department, dated 8.8.2006, for inclusion, in Part-I of the Schedule to the Minimum Wages Act, 1948, of the employment in "Textile Mills including Composite Mills, Spinning Mills, Weaving Mills, Open Ended Mills and the various processes in the above said Mills like Blow Room, Carding, drawing, fly frames, spinning, winding, doubling, reeling, packing, warping-sizing and other processes in the Textile Mills, whether carried out singly or together".

5. Objections and suggestions were invited to the preliminary notification and after considering them, the preliminary notification was confirmed without any modification, by G.O.Ms.No.1, Labour and Employment (J2) Department, dated 3.1.2007. Accordingly, a notification was published in the Tamil Nadu Government Gazette, including the employment in Textile Mills at Serial No.88 in Part-I of the Schedule to the Act, by way of amendment, in exercise of the powers conferred by Section 27 of the Act.

6. Thereafter, the Chief Inspector of Factories sent a report dated 14-2-2007 to the Government, stating that a camp coolie system was prevalent in Textile Mills under the name "Thirumagal Thirumana Thittam" and that young girls above the age of 15 years were being engaged under the system for 3 years as apprentices and that their appointments were legalised by the Certification of the Standing Orders and that full production was carried on by the Mills by engaging 60 to 80% of them as the total work force and that after completing a tenure of 3 years these girls are paid a lump sum amount ranging from Rs.30,000/- to Rs.50,000/- to meet out their marriage expenses. The report also contained the following statistics: Place Total No. Of Mills Number of Mills Number of engaging them persons so engaged

Erode 185 73 7810

Coimbatore 1041 291 21599

Dindigul 145 42 9052

--------------------------------------------------------------------------------------------------------

7. It was further stated in the said report that several trade unions had expressed dissatisfaction about this system and that some allegations of sexual harassment of these girls had also arisen. The report recommended that since it might be impossible to abolish the system all of a sudden, it would be better to appoint monitoring committees at the district level.

8. Accepting the recommendations of the Chief Inspector of Factories, the Government issued G.O.Ms.No.62, Labour and Employment department, dated 30-3-2007, appointing District Monitoring Committees in the districts of Erode, Coimbatore and Dindigul.

9. At about the same time, a complaint/intimation was sent in the last week of March 2007, by one Mr.A.Mahaboob Batcha, Managing Trustee, Society for Community Organisation Trust, Madurai, to the National Human Rights Commission, alleging that thousands of girls in the age group of 15 to 20, were employed as bonded labourers by certain Textile Mills, under some dubious schemes known as "Sumangali Marriage Thittam" and "Thirumagal Thirumana Thittam".

10. The National Human Rights Commission took the complaint on file and issued a notice dated 10.4.2007 to the Government of Tamil Nadu, directing them to look into the matter and submit a factual report within 4 weeks. Therefore, after receiving the recommendations of the the Commissioner of Labour and the Chief Inspector of Factories, the Government issued G.O.Ms.No.137, Labour and Employment Department, dated 22.6.2007, ordering the constitution of District Monitoring Committees in the Districts of Erode, Coimbatore, Dindigul, Madurai, Theni, Salem, Namakkal, Karur, Sivaganga, Ramanathapuram, Virudhunagar, Tirunelveli, Tuticorin, Dharmapuri, Krishnagiri, Trichy and Vellore. This G.O was issued in supersession of the earlier order G.O.Ms.No.62, Labour and Employment department, dated 30-3-2007. The Monitoring Committees constituted by this G.O 137, were to comprise of the respective District Collectors as their Chairmen and the Deputy Commissioners of Labour of the Districts, the Deputy Chief Inspectors of Factories of the Districts and the District Revenue Officers as their members. The Committees were assigned the task of identifying Mills where young girls are employed as apprentices, examining their working conditions and advising the measures to be taken for prevention of exploitation of young girls in the guise of apprentices.

11 At that time, a trade union filed a public interest writ petition in W.P.No. 21868 of 2007, challenging the validity of the first Government Order G.O.Ms.No.62, Labour and Employment department, dated 30-3-2007 and seeking a direction to the Government to abolish the camp coolie system. On 28-6-2007, the First Bench of this court took the writ petition on file and directed the Government to file a counter and also to place on record the reports of the Monitoring Committees.

12. Thereafter, a second public interest litigation was filed by 2 other Trade Unions in W.P.No.27362 of 2007, challenging the second Government Order in G.O.Ms.No.137, Labour and Employment Department, dated 22.6.2007 and also seeking a direction to abolish the Camp Coolie System. On 3-10-2007, the First Bench of this Court took that writ petition also on file, and issued certain preliminary directions. The summary of the directions issued by the First Bench, is as follows:- (a) There shall be a District Monitoring Committee comprising of the District Collector, Deputy Chief Inspector of Factories, Deputy Labour Commissioner, one representative of the District Legal Services Authority and one woman NGO, nominated by the District Legal Services Authority. (b) The District Monitoring Committee should carry out surprise inspections of the Textile Mills in their respective Districts, as well as in the places where the female workers were accommodated and collect information about the wages paid to them and their working conditions, in order to find out whether they are merely Learners/Apprentices or engaged in regular employment. (c) Each of those Committees shall submit its report to the Registrar-General within 3 months, along with their recommendations for regularisation of their services and for payment of regular wages.

13. At this stage, the Tamil Nadu Spinning Mills Association, which was impleaded suo motu by the First Bench in the above PIL (W.P.No.27362 of 2007), came up with a writ petition in W.P.No.9182 of 2007, challenging the final notification issued under G.O.Ms.No.1, dated 3.1.2007, by which Textile Mills were included in Part-I of the Schedule to the Minimum Wages Act, 1948. But that writ petition was dismissed by the First Bench (to which I was a party), by an order dated 31.10.2007 and the notification was upheld.

14. Thereafter, the Government issued a draft notification in G.O. (2D) No.26, Labour and Employment (J1) Department, dated 16.5.2008, proposing to fix the minimum rate of wages payable to the Apprentices engaged in the employment in Textile Mills at Rs.110/- per day, apart from Dearness Allowance specified in the Explanation to the notification. This notification was published in the Tamil Nadu Government Gazette, Part-II, Section 2 at page-203.

15. The Southern India Mills Association, the South India Small Spinners Association, The Tamil Nadu Spinning Mills Association, Employers' Federation of South India and about 302 Mills as well as some Trade Unions, sent objections and suggestions to the draft notification. After considering the objections/suggestions, the Government issued G.O. (2D) No.61, Labour and Employment (J1) Department, dated 7.11.2008, confirming the draft notification. Paragraphs-3 to 5 of the final notification dated 7.11.2008, spelt out the process by which the Government arrived at the decision to confirm the draft notification and hence they are reproduced as under:- "3. The Government have carefully examined the objections/suggestions received from the Southern India Mills Association, the South India Small Spinners Association, Tamil Nadu Spinning Mills Association, the Employers' Federation of Southern India, 302 individual mills and few Trade Unions and also the report of the Commissioner of Labour in this regard. The Government have examined, considered and decided to reject the objections/suggestions made by individual mills, Employers' Associations and Trade Unions. Accordingly, the Government confirm the above preliminary notification.

4. The Government by fixing minimum rates of wages to apprentices in textile mills have acted upon the direction of the Division Bench of the Hon'ble Madras High Court in the interim order dated 3.10.2007 in a writ petition filed by certain Trade Unions in W.P.No.27362 of 2007, to the authorities to take steps to ensure that these apprentices receive wages as per the law.

5. The Government have taken into consideration of various factors like the existing low wages paid to apprentices, the rapid changes in the consumer price index adversely affecting the living conditions of workers, representations made by various trade unions to the Government regarding the plight of apprentices, notice issued by the National Human Rights Commission in this issue and the direction by the Division Bench of the Hon'ble Madras High Court to the authorities to take steps to ensure that these apprentices receive wages as per the law."

16. The final notification published in the Government Gazette reads as follows:-

"In exercise of the powers conferred by clause (a) of sub-section (1) of section 3 and clause (b) of sub-section (1) of section 5 of the Minimum Wages Act, 1948 (Central Act XI of 1948), the Governor of Tamil Nadu hereby fixes the minimum rate of wages payable to the apprentices engaged in the Employment in Textile Mills, including Composite Mills, Spinning Mills, Weaving Mills, Open Ended Mills and the various processes in the above said mills like Blow Room, Carding, drawing, fly frames, spinning, winding, doubling, reeling, packing, warping-sizing and other processes in the Textile Mills, whether carried out singly or together, in the State of Tamil Nadu, as Rs.110/- (Rupees one hundred and ten only) per day, the draft of the same having been previously published as required by clause (b) of sub-section (1) of section 5 of the said Act and objections and suggestions received having been considered under sub-section (2) of section 5 of the said Act. EXPLANATIONS:-

(1) In addition to the minimum rate of wages fixed above, the apprentices shall be paid dearness allowance as specified below:-

(i) The dearness allowance is linked to the average of Chennai City Consumer Price Index for the year 2000 i.e., 475 points with base 1982 = 100 and for every rise of one point over and above 475 points, an increase of 23 paise (Twenty three paise only) shall be paid as dearness allowance per day. (ii) The dearness allowance shall be calculated every year on the 1st April on the basis of the average of the indices for the preceding 12 (Twelve) months, that is, from January to December.

(iii) The first calculation shall thus be effective from the date of publication of this Notification in the Tamil Nadu Government Gazette based on the Average Consumer Price Index number for the previous year. (2) Where the nature of work is the same, no distinction in the payment of wages shall be made as between men and women apprentices.

(3) To arrive at monthly wages, the daily wages shall be multiplied by 30.

(4) Wherever the existing wages are higher than the minimum wages fixed herein, the same shall be continued to be paid.

2. This Notification shall come into force with effect on and from the date of publication in the Tamil Nadu Government Gazette Extraordinary, dated the 7th November 2008."

17. Challenging the above final notification, several Associations of the Managements of Mills have come up with 4 writ petitions. Since one of the grounds of challenge in these 4 writ petitions is that an apprentice is not an employee for whom minimum wage can be fixed, a 5th writ petition is filed challenging the vires of Section 3(3)(a)(iii) of the Minimum Wages Act, which includes even apprentices. Let me first take up the writ petitions, challenging the final notification.

GROUNDS OF CHALLENGE TO THE FINAL NOTIFICATION:

18. Though Messers.A.L.Somayaji, Vijay Narayan and T.R. Rajagopalan, learned Senior Counsel appearing for the petitioners projected the challenge to the final notification from different dimensions, all the grounds of challenge actually revolve around certain fundamental issues. Therefore, the grounds of challenge, in simple terms, are crystallised as follows:- (a) That the very object of the Act, is to help workers in the unorganized Sector, where there is sweated labour and hence no notification can be issued in respect of employment in Textile Mills, where the workmen are well organised through Trade Unions; (b) That there is no power under the Minimum Wages Act, to fix the rate of wages for apprentices, since there must be a relationship of master and servant, to enable the Government to fix the minimum rate of wages; (c) That in view of the various provisions of the Apprentices Act, 1961, it is only the appropriate Government which is entitled to fix the stipend payable to them and the fixation of minimum wages runs contrary both to the legislative intent and the provisions of the Apprentices Act, 1961; (d) That there are references pending adjudication before the Industrial Tribunal, in view of which, there is a bar under the last limb of Section 3(2-A) of the Minimum Wages Act, to issue any notification;

(e) That the Government failed to constitute a Committee as per Section 5(1) and resorted to the power under Section 5(2), but without constituting any Advisory Board as per the proviso to Section 5(2);

(f) That the action of the Government is vitiated by malice in law and is a colourable exercise of power;

(g) That different rate of minimum wages for the apprentices in different industries, cannot be fixed;

(h) That the inclusion of Dearness Allowance by way of "Explanation" in the impugned notification, is contrary to law;

(i) That in any event, the impugned notification fixes minimum wages on an adhoc basis, without taking into account the six basic components for determining minimum wages, as laid down by the Apex Court.

GROUND-1 (Sweated Labour):

19. The first ground of attack to the impugned notification, is that the Minimum Wages Act, is intended for the benefit of sweated labour and the workers in the unorganised sector. Workers in the Textile Mills are an organised lot and hence fixation of minimum rate of wages for the apprentices in the Textile Industry is not in tune with the objects of the Act.

20. In support of the above contention, the petitioners rely upon an observation of the Supreme Court in Edward Mills Co. vs. State of Ajmer {AIR 1955 SC 25}, where it was stated that "the legislature undoubtedly intended to apply this Act, not to all industries but to those industries only where by reason of unorganised labour or want of proper arrangements for effective regulation of wages or for other causes, the wages of labourers in a particular industry were very low. "

21. The above contention can be tested easily on the basis of the Statement of Objects and Reasons, spelt out in the Bill. Paragraph-1 of the Statement of Objects and Reasons, reads as follows:-

"The justification for statutory fixation of minimum wages is obvious. Such provisions which exist in more advanced countries are even more necessary in India, where workers' organisations are yet poorly developed and the workers' bargaining power is consequently poor." In paragraph-2 of the Statement of Objects and Reasons, it is stated as follows:-

"The items in the Schedule are those where sweated labour is most prevalent or where there is a big chance of exploitation of labour. After a time, when some experience is gained, more categories of employments can be added and the Bill provides for additions to the Schedule."

22. Paragraph-2 of the Statement of the Objects and Reasons, answers the first ground of challenge directly, by indicating that the Act provides for fixation of minimum rates of wages for employments covered by the Schedule, and that the industries included in the Schedule are either those where sweated labour is most prevalent or those where there is a big chance for exploitation of labour. In other words, the object of the Act is not merely to enable the Government to fix minimum wages for industries where there is sweated labour, but also to enable such fixation even in employments where there are big chances for exploitation of labour. This is why even in Edward Mills case, relied upon by the petitioners, the Supreme Court observed that "the conditions of labour vary under different circumstances and that the expediency of including a particular trade or industry within the Schedule depends on a variety of facts which are by no means uniform".

23. Exploitation need not necessarily be by the Managements of Industries alone. It could also be by Trade Unions. Therefore merely because the work force in an industry is well organised, it cannot be presumed that there would be no exploitation of labour. This is why, paragraph-2 of the Statement of Objects and Reasons, provides for both contingencies viz., (i) the presence of sweated labour or (ii) the chance of exploitation of labour.

24. In the case of apprentices in Textile Mills, the Government had reasons to believe, (i) first on account of a complaint by a NGO to the National Human Rights Commission (ii) next on account of a public interest litigation filed before this Court and (iii) then on the basis of the reports of the District Monitoring Committees, that there was exploitation of labour. Therefore as a first step, the Government included Textile Mills with an expanded meaning, in the Schedule to the Act under G.O.Ms.No.1, Labour and Employment Department, dated 3.1.2007. The challenge to such inclusion was rejected by the Division Bench of this Court in W.P.No.9182 of 2007 dated 31.10.2007. The very same argument regarding sweated labour was rejected by the Division Bench in paragraph-6 of its judgment. Therefore, it is too late in the day to contend that the Government can fix minimum rate of wages only in respect of industries where sweated labour is prevalent.

25. In any case, the power of the State Government to add any employment to the Schedule, flows out of Section 27 and the power of the appropriate Government to fix minimum rate of wages flows out of Section 3. Neither Section 27 nor Section 3 places any embargo upon the power of the State Government or appropriate Government to fix minimum rate of wages only in respect of an employment where sweated labour is prevalent. The phrase "sweated labour" used in the Statement of Objects and Reasons cannot restrict the powers that flow out of Sections 3 and 27. It is a fundamental rule of interpretation of statutes that the Statement of Objects and Reasons and the Preamble cannot restrict the scope of express provisions of the statute. At the most, they furnish valuable historical material for understanding the background and antecedent state of affairs leading upto the legislation. In Gujarat University vs. Shri Krishna {AIR 1963 SC 703}, it was held that the "Statement of Objects and reasons may and do often furnish valuable historical material in ascertaining the reasons which induced the Legislature to enact a statute but in interpreting the statute they must be ignored. In State of West Bengal vs. Union of India {AIR 1963 SC 1241}, it was held that the "Statement of objects and reasons accompanying a Bill, when introduced in Parliament cannot be used to determine the true meaning and effect of the substantive provisions of the statute. These may be used for understanding the background and the antecedent state of affairs leading upto the legislation but these are not to be used as aids to the construction of the Act." Again in Bhaiji vs. Sub Divisional Officer, Thandla {2003 (1) SCC 692}, the Supreme Court held as follows:- "The weight of Judicial Authority leans in favour of the view that the Statement of Objects and Reasons cannot be utilised for the purpose of restricting and controlling the plain meaning of the language employed by the Legislature in drafting a statute and excluding from its operation such transactions which it plainly covers."

26. Therefore, the first contention cannot be accepted for the reason that if accepted, it would militate against the plain meaning of Sections 3 and 27 of the Act. While it may be reasonable, in certain circumstances, to fall back upon the Statement of Objects and Reasons, to understand and given effect to the full meaning of some provisions of the statute, it is not permissible to restrict the plain language of the provisions of the Act, by using the Statement of Objects and Reasons. As a matter of fact, it is a misconception to think that the Government has power to include only such of those employments where there is sweated labour or exploitation of labour, merely on the basis of the Statement of Objects and Reasons. None of the provisions of the Act, contain any restriction upon the power of the Government to fix minimum rate of wages even for any employment where there is neither sweated labour nor exploitation of labour. Therefore, the first contention of the petitioners is rejected.

GROUND-2 (No power to fix minimum wages for apprentices):

27. The second contention of the petitioners is that the power to fix minimum rate of wages under Section 3 (1)(a) of the Act, does not extend to apprentices, but limited only to the employees. This contention sprouts out of the phrase used in Section 3(1)(a) viz., "wages payable to employees employed in an employment specified in Part-I or Part-II of the Schedule". According to the petitioners, the apprentices are not "employees employed in an employment" and hence the State Government has no power to fix minimum rate of wages for apprentices in an employment specified in the Schedule.

28. In order to substantiate the above contention, the learned Senior Counsel appearing on behalf of the petitioners, placed reliance upon the definition of the words "wages" and "employee" in Section 2(h) and 2(i) of the Minimum Wages Act, 1948 and they also placed reliance upon the decisions of the Apex Court in (i) the Employees' State Insurance Corporation vs. The Tata Engineering and Locomotives Co. Ltd {1975 (2) SCC 835} (ii) Haryana Unrecognised Schools' Association vs. State of Haryana {1996 (4) SCC 225} (iii) U.P. State Electricity Board vs. Shiv Mohan Singh {2004 (8) SCC 402} and (iv) New India Assurance Co. Ltd vs. Abhilash Jewellery {2009 (2) SCC 661}.

29. Section 2(h) of the Act, defines "wages" as follows:-

"(h) "wages" means all remunerations, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes house-rent allowance, but does not include - (i) the value of -

(a) any house accommodation, supply of light, water, medical attendance, or

(b) any other amenity or any service excluded by general or special order of the appropriate Government.

(ii) any contribution paid by the employer to any pension Fund or Provident Fund or under any scheme of social insurance;

(iii) any travelling allowance or the value of any travelling concessions;

(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(v) any gratuity payable on discharge;"

Section 2(i) of the Act, defines "employee" as follows:-

"(i) "employee" means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamental, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out worker or in some other premises not being premises under the control and management of that other person; and also includes an employee to be an employee by the appropriate Government; but does not include any member of the armed forces of the Union."

30. The Supreme Court in The Employees' State Insurance Corporation and Another vs. The Tata Engineering and Locomotive Co. Ltd and Another {(1975) 2 SCC 835} held in paragraphs-5 and 8, as follows:-

"5. The word 'apprentice' is not defined in the Act, nor is it specifically referred to in the definition of 'employee' by either inclusion or exclusion. We are unable to hold that in ordinary acceptation of the term apprentice, a relationship of master and servant is established under the law. Even etymologically, as a matter of pure English, "to serve apprenticeship means to undergo the training of an apprentice" (Chamber's Dictionary). According to the Shorter Oxford English Dictionary, apprentice is a learner of a craft; one who is bound by legal agreement to serve an employer for a period of years, with a view to learn some handicraft, trade, etc., in which the employer is reciprocally bound to instruct him. Stroud's Judicial Dictionary puts it thus:

In legal acceptation, an apprentice is a person bound to another for the purpose of learning his trade, or calling; the contract being of that nature that the master teaches and the other serves the master with the intention of learning. While dealing with the nature of the relationship of master and servant in comparison with other relationships in Halsbury's Laws of England, Third edition, Volume 25, the following passage appears at para 877, pages 451-452: By a contract of apprenticeship a person is bound to another for the purpose of learning a trade or calling, the apprentice undertaking to serve the master for the purpose of being taught, and the master undertaking to teach the apprentice. Where teaching on the part of the master or learning on the part of the other person is not the primary but only an incidental object, the contract is one of service rather than of apprenticeship; but, if the right of receiving instruction exists, a contract does not become one of service because, to some extent, the person to whom it refers does the kind of work, that is done by a servant, or because he receives pecuniary remuneration for his work." "8. Again we find that where the Legislature intends to include apprentice in the definition of a worker it has expressly done so. For example, the Industrial Disputes Act, 1947, which is a piece of beneficial labour welfare legislation of considerable amplitude defines 'workman' under Section 2(s) of that Act and includes apprentice in express terms. It is significant that although the Legislature was aware of this definition under Section 2(s) under the Industrial Disputes Act, 1947, the very following year while passing the Employees' State Insurance Act, 1948, it did not choose to include apprentice while defining the word 'employee' under Section 2(9) of the Employees' State Insurance Act, 1948. Such a deliberate omission on the part of the Legislature can be only attributed to the well-known concept of apprenticeship which the Legislature assumed and took note of for the purpose of the Act. This is not to say that if the Legislature intended it could not have enlarged the definition of the word 'employee' even to include the 'apprentice' but the Legislature did not choose to do so."

31. In Haryana Unrecognised Schools Association vs. State of Haryana {1996 (4) SCC 225}, the question that arose for consideration was whether teachers of an educational institution could be held to be employees within the meaning of Section 2(i) of the Minimum Wages Act. After indicating in paragraph-8 of its judgment that a beneficial interpretation is to be given to statutes like the Minimum Wages Act, the Court held that such interpretation should be confined only to employments intended to be covered by the Act. Thereafter in paragraph-10, it was held as follows:- "10. A combined reading of the aforesaid provisions as well as the object of the legislation as indicated earlier makes it explicitly clear that the State Government can add to either part of the Schedule any employment where persons are employed for hire or reward to do any work skilled or unskilled, manual or clerical. If the persons employed do not do the work of any skilled or unskilled or of a manual or clerical nature then it would not be possible for the State Government to include such an employment in the Schedule in exercise of power under Section 27 of the Act. Since the teachers of an educational institution are not employed to do any skilled or unskilled or manual or clerical work and therefore could not be held to be an employee under Section 2(i) of the Act, it is beyond the competence of the State Government to bring them under the purview of the Act by adding the employment in educational institution in the Schedule in exercise of power under Section 27 of the Act."

32. In U.P. State Electricity Board vs. Shiv Mohan Singh {2004 (8) SCC 402}, a question arose regarding the scope of the Apprentices Act, 1961 vis-a-vis U.P. Industrial Disputes Act, 1947, The Industrial Disputes Act, 1947 and The Boilers Act, 1923. After analysing the entire scheme of the Apprentices Act and the Apprenticeship Rules, 1992, the Supreme Court held in paragraph-43 of the said judgment that the position of the apprentice remains as an apprentice trainee and that during the period of training, he will not be treated as workman. At the end of paragraph-43, the Court held that "there is no relation of master and servant or employer and employee". In paragraph-55 of the same judgment, the Supreme Court held that even if the contract of apprenticeship was not registered, under Section 4 of the Apprentices Act, 1961, it will not change the character of the apprentices nor would they acquire the status of workmen.

33. In New India Assurance Company Ltd vs. Abhilash Jewellery {2009 (2) SCC 661}, the Supreme Court held as follows:-

"6. In various enactments, the word "employee", has no doubt, been defined to include an apprentice, but that is only a deeming provision and a legal fiction by which the meaning of the word "employee" has been extended." "8. Many such illustrations of deeming clauses or legal fictions can be given. The definition of "employee" in various enactments which include an apprentice within the ambit of the definition is such a piece of legal fiction. That, however, does not mean that in common parlance an apprentice is an employee."

34. In the light of the definition of the word "employee" and the various decisions of the Supreme Court, emphasising the absence of the relationship of master and servant between the employer and the apprentice, it is contended by all the learned Senior Counsel appearing for the petitioners that per se the impugned notification fixing minimum rate of wages for apprentices in Textile Mills is contrary to law. According to the petitioners, any amount of justification provided by the respondents, on the allegation that young girls are exploited under the guise of being engaged as apprentices or on the allegation that they are virtually camp coolies employed to do the work of regular employees, could not make the notification legal. In other words, the contention of the petitioners is that there cannot be a notification under the Act, fixing minimum rate of wages for apprentices, though it may be open to the apprentices to claim the benefits enjoyed by the regular employees, on the ground that they are not apprentices but are actually engaged to do regular work. In simple terms, the petitioners contend that if the Government issues a notification fixing minimum rate of wages for regular employees, it may be open to the apprentices to raise Industrial Disputes and go before appropriate Forums, claiming the same benefit on the basis of the actual work assigned to them. But the Government has no power, according to the petitioners, to fix minimum rate of wages for the apprentices in the industry.

35. I have carefully considered the above submissions. At the outset, as pointed out by the Supreme Court in Abhilash Jewellery case, the words "employee" and "workman" are defined in different labour welfare legislations, to mean and include different categories of persons engaged by the employers. Some of these definitions are indicative, some are inclusive, some are illustrative and some are exclusive of certain categories of persons engaged. Let us now see some of them:- (i) Section 2(i) of The Contract Labour (Regulation and Abolition) Act, 1970, defines a "workman" to mean a person employed in or in connection with the work of any establishment to do any skilled or semi skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, but does not include a person employed in managerial or administrative capacity or supervisory capacity drawing wages above a particular level or an out worker. (ii) Section 2(a) of The Employers' Library Act, 1938, defines a workman to mean any person who has entered into or works under a contract of service or apprenticeship with the employer for manual or clerical work or otherwise. (iii) Section 2(f) of The Employees' Provident Fund and Miscellaneous Provisions Act, 1952, defines an employee to mean any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment and who gets his wages from the employer directly or indirectly and includes an apprentice as well as a person employed through a contractor. (iv) Section 2(9) of The Employees' State Insurance Act, 1948, defines an employee to mean any person employed for wages in or in connection with the work of a factory or establishment to which the Act applies, whether directly employed by the principal employer or by or through an immediate employer or whose services are lent or let on hire to the principal employer and includes even an apprentice, not being an apprentice engaged under The Apprentices Act, or under the Standing Orders of the establishment (Non-Act Apprentices were included in the definition in ESI Act, only by the amendment Act 29 of 1989 with effect from 20.10.1989). (v) Section 2(i) of The Equal Remuneration Act, 1976, defines a worker to mean a worker in any establishment or employment in respect of which the Act has come into force.

(vi) Section 2(l) of The Factories Act, 1948, defines a worker to mean a person employed directly or through an agency, with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process or any other kind of work incidental to or connected with, the manufacturing process. (vii) Section 2(s) of The Industrial Disputes Act, 1947, defines a workman to mean any person, including an apprentice, employed in any industry to do any manual, skilled, unskilled, technical, operational, clerical or supervisory work, for hire or reward. (viii) Section 2(i) of The Industrial Employment (Standing Orders) Act, 1946, stipulates that the word "workman" shall have the same meaning as assigned to it under Section 2(s) of The Industrial Disputes Act, 1947. In the Schedule under this Act, listing out the matters to be provided in the Standing Orders of an Industrial Employment, item No.1 relates to classification of workmen as permanent, temporary, apprentices, probationers or badlis. (ix) Section 2(j) of The Inter State Migrant Workmen (Regulation of Employment and conditions of Service) Act, 1979, defines a workman to mean any person employed in or in connection with the work of any establishment to do any skilled, semi skilled, unskilled, manual, supervisory, technical or electrical work, for hire or reward, but does not include a person employed in managerial or administrative capacity or in supervisory capacity drawing wages exceeding a particular level. (x) Section 2(h) of The Motor Transport Workers Act, 1961, defines a motor transport worker to mean a person employed in a motor transport undertaking, directly or through an agency, whether for wages or not, to work in a professional capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, time keeper, watchman or attendent. (xi) Section 2(13) of The Payment of Bonus Act, 1965, defines an employee to mean any person other than an apprentice, employed on a salary or wage not exceeding a particular level, to do any skilled or unskilled, manual, supervisory, managerial, administrative, technical or clerical work, for hire or reward. (xii) Section 2(e) of The Payment of Gratuity Act, 1972, defines an employee to mean any person other than an apprentice, employed on wages in any establishment or factory, Mine, Oil Field, Plantation, Port, Railway Company or Shop, to do any skilled, semi skilled, unskilled, manual, supervisory, clerical or technical work. (xiii) Section 2 (i) of The Payment of Wages Act, 1936, defines "employed persons" to include the legal representative of a deceased employed person.

(xiv) Section 2(k) of The Personal Injuries (Compensation Insurance) Act, 1963, defines a workman to mean any person who is employed in any of the employments specified in Section 3, other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of employer's trade or business. (xv) Section 2(k) of The Plantation Labour Act, 1951, defines a worker to mean a person employed in a plantation for hire or reward, directly or through an agency, to do any work, skilled, unskilled, manual or clerical. (xvi) Section 2(n) of The Workmen's Compensation Act, 1953, defines a workman to mean any person who is a Railway servant (excluding certain categories), crew of a ship or aircraft, a person employed in connection with a motor vehicle or a person employed in any capacity as specified in Schedule-II. Schedule-II is very exhaustive to cover persons employed in various employments.

36. Thus it is seen that in certain enactments, there is specific inclusion of apprentices, within the meaning of the word "workman" or "employee". In certain enactments, there is specific exclusion and in certain others, there is neither inclusion nor exclusion. It is the last category of enactments, where there is no specific inclusion or exclusion, which provide ample scope for lawyers to exploit.

37. Superficially viewed, the Minimum Wages Act, appear to belong to the third category of enactments, where there is no specific inclusion or exclusion of apprentices within the meaning of the word "employee". Therefore the learned Senior Counsel appearing for the petitioners laid stress on the phrase "employed for hire or reward" in Section 2(i) of the Act, to contend that unless a person is employed, signifying the relationship of master and servant, there is no scope for expanding the meaning of the word "employee" to include apprentices.

38. Though the definition of the word "employee", under the Minimum Wages Act, 1948, does not specifically include apprentices, within its meaning, there are two indications, one in the latter part of the definition in Section 2(i) and another in Section 3(3)(a)(iii) of the Act, to show that the apprentices come within the definition of the word. Section 2(i) consists of four parts viz., (a) the first part giving the meaning of the word "employee", as any person employed for hire or reward, to do any work, skilled or unskilled, manual or clerical, in a scheduled employment; (b) the second part including an out worker to whom any articles or materials are given, to do certain things, either in the home of such out worker or in some other premises not under the control of the person engaging such out worker; (c) the third part including an employee to be an employee by the appropriate Government; and (d) the fourth part excluding any member of the armed forces of the Union.

39. The third part of Section 2(i) clearly enables the appropriate Government to treat any person to be an employee. The third part of Section 2(i) reads as follows:-

"and also includes an employee to be an employee by the appropriate Government"

Therefore, unlike other labour welfare legislations, where no leverage is given to the Government to expand the meaning of the words defined therein, the Minimum Wages Act gives an elbow space to the Government to treat a person as an employee under the Act.

40. That it is so is further fortified by Section 3(3)(a)(iii), which reads as follows:-

"3(3) In fixing or revising minimum rates of wages under this Section -

(a) different minimum rates of wages may be fixed for -

(i) different scheduled employments;

(ii) different classes of work in the same

scheduled employment;

(iii) adults, adolescents, children and apprentices;

(iv) different localities;"

41. If the intention of the law makers, was to exclude apprentices from the purview of the Minimum Wages Act, Section 3(3)(a)(iii) would not have found a place in the statute. Therefore I am of the considered view that there is no bar under the Act, for the Government to treat an apprentice as an employee within the meaning of the Act and to issue a notification fixing minimum rates of wages for such apprentices. This is why, one of the petitioners, by way of abundant caution, has challenged the vires of Section 3(3)(a)(iii). Therefore, I am unable to sustain the second ground of attack to the notification.

42. Once the scheme of the Act is understood with reference to the third part of Section 2(i) and the power conferred under Section 3(3)(a) (iii), it is easy to understand the ratio laid down by the Supreme Court in the decisions cited by the learned Senior Counsel appearing for the petitioners. Therefore let me now go to the decisions relied upon by them.

43. In Tata Engineering and Locomotive case {1976 (1) LLJ 81}, the question that arose for consideration was whether an apprentice is an employee under the Employees' State Insurance Act, 1948 or not. After taking note of the ordinary meaning of the word "apprentice" and the history of the Apprentices Act (from what it was under the 1850 Act to what it became under the 1961 Act), the Supreme Court held that an apprentice is not an employee within the meaning of Section 2(9) of the ESI Act. But the ESI Act, 1948 was amended under Act 29 of 1989, to include apprentices (other than those engaged under the Apprentices Act, 1961), within the meaning of the word "employee" under Section 2(9). Therefore, the above decision is of no assistance to the petitioners.

44. In Haryana Unrecognised Schools' Association case {1996 (4) SCC 225}, the question was whether teachers of an educational institution could be held to be employees under Section 2(i) of The Minimum Wages Act. On the ground that teachers do not do any skilled or unskilled, manual, supervisory, technical or clerical work, but carry on a noble vocation, the Supreme Court held that they are not employees. This is because there was nothing in the Act, to include teachers within its purview. But in so far as apprentices are concerned, the third part of Section 2(i) and Section 3(3)(a)(iii) leave no scope for any interpretation, as they give clear indication about their status. Therefore this decision is also of no avail to the petitioners.

45. The decision in U.P. State Electricity Board case {2004 (8) SCC 402}, lays down in no uncertain terms that an apprentice is not an employee and there is no relationship of master and servant. The decision goes only so far and no further. It is a misconception to think that the power of the Government under the Minimum Wages Act, to fix minimum rate of wages, depends entirely upon the existence of the relationship of master and servant. As stated earlier, the second part of Section 2(i) encompasses within itself, a contract for services. In contra distinction to a "contract of services", the existence of the relationship of master and servant is not a sine qua non, in a "contract for services". Therefore the ratio laid down in the said case, as to who is an apprentice, cannot be applied to the case on hand. In so far as the Minimum Wages Act is concerned, there is an express provision under Section 3(3)(a)(iii), enabling the Government to fix minimum rate of wages for apprentices. So long as that power remains in the statute, the definition of the word "employee" and the existence of the relationship of master and servant, are of little consequence.

46. The decision in Abhilash Jewellery case {2009 (2) SCC 661}, is in the context of a contract of insurance, to which, it was held by the Supreme Court, the definition of the word "employee" under the Kerala Shops Act, cannot be imported. Therefore that decision will not also help the petitioners.

47. In short, we are not concerned here with the question as to whether an apprentice is an employee or not or whether there is a relationship of master and servant. We are also not concerned with the question whether the definition of the word "employee" in Section 2(i) includes within its ambit, an apprentice or not. We are concerned only with the simple issue as to whether the Government has the power to fix minimum wages for apprentices or not.

48. It was contended on behalf of the Trade Unions that though the Textile Mills in question were designating these women as apprentices, they were in fact engaged to do regular production work. To substantiate this contention, the learned counsel appearing for the contesting respondents drew my attention to the reports of the District Monitoring Committees. They also drew my attention to the admission made by the representatives of the writ petitioners, before the Hon'ble Minister for Labour in the meeting held at the Collectorate, Coimbatore on 11.7.2006 that these women apprentices constitute 70% to 80% of the total work force in the Mills. The List of Dos and Donts circulated by the petitioner-Associations, was also brought to my notice to show that despite the designation given, these women were actually engaged to do regular work.

49. But as I have pointed out above, I do not wish to record a finding on a question of fact whether these women were in fact apprentices or not. What is posed before me for consideration, is a legal question whether the Government has power to fix minimum rates of wages for apprentices or not. Therefore, de hors the question of fact, this legal argument can be tested and which is what I have done in the previous paragraphs.

50. As pointed above, the State Government has power to fix minimum rate of wages even for apprentices. This is made clear by the power conferred on the Government by the third part of Section 2(i) to treat a person "to be an employee". Even if this is discarded, Section 3(3)(a)(iii) steers clear any doubt in this regard. Therefore I reject the second contention of the petitioners and hold that the State Government has power to fix minimum rates of wages even for apprentices.

GROUND-3 (PROVISIONS OF APPRENTICES ACT EXCLUDING THE OTHER LAWS):

51. The third contention of the petitioners is that the Apprentices Act, 1961, is a self contained Code and that it is only the appropriate Government that should notify the designated trade in which a contract of apprenticeship could be entered into and that Section 18 of the Act, excludes the application of all other labour laws to apprentices. By a notification issued under Section 1(4)(a) of The Apprentices Act, 1961, the Central Government notified the industry of "manufacture of Cotton Textiles", as one of the industries to which the provisions of the Apprentices Act, would apply. Therefore the petitioners contend that the impugned notification is violative of the provisions of the Apprentices Act, 1961.

52. Strong reliance is placed by the petitioners, in this regard, on the decision of the Supreme Court in U.P. State Electricity Board case {2004 (8) SCC 402}. In the said decision, as pointed out earlier, the Supreme Court held that the registration of the contract of apprenticeship is only directory and not mandatory and that the non-registration of the contract will not make an apprentice, a workman.

53. In his separate but concurring opinion, Hon'ble S.B.Sinha, J., held in paragraph-89 of the said decision, that the Apprentices Act, is a complete Code in itself. But the question that arose for consideration in that case, was pointed in paragraph-90 of the said decision as follows:- "90. The primal question which arises for consideration is as to whether a person who is an apprentice within the meaning of Section 2(aa) of the said Act would become a workman and, consequently, would be entitled to the benefits of various labour laws in the event of breaches of the terms of the said contract as also non-registration thereof."

54. After answering the question in the negative, the Supreme Court also added a note of caution in paragraphs-114, 115 and 116 of the same judgment, as follows:-

"114. It is not a case where any of the apprentices repudiated the contract. No argument has also been advanced to the effect that the contract of apprenticeship was merely a camouflage or a ruse so as to establish that in effect and substance, while appointing a person as an apprentice, the employer has been taking work from him mala fide or with a view to deprive him from the benefits of the labour legislations, nor any material in respect thereof had been brought on record." "115. Whether the relationship of an employer and workman or an employer and an apprentice had been brought about, is essentially a question of fact. The Court while determining such a dispute must consider the factual matrix involved therein in the light of the provisions of the said Act. Once it is held that a contract of apprenticeship entered into by and between the employer and the workman is a genuine one and not a camouflage or a ruse, a presumption would arise that the person concerned is not a workman." "116. It is one thing to say that a contract is illegal being opposed to public policy so as to render the same void in terms of Section 23 of the Indian Contract Act but it is another thing to say that by reason of breaches of the terms and conditions thereof by one of the parties it becomes voidable at the instance of the other party to the contract. If a contract is valid in law the breaches thereof would not render it invalid but the same may only enable a party thereto, who had suffered by reason of such breach, to avoid the contract. Unless the terms and conditions of a contract are avoided by a party thereto the contract remains valid and all consequences flowing therefrom would enure to the benefit of the parties thereto."

55. Therefore the argument based upon the provisions of the Apprentices Act, 1961, with particular reference to the bar contained in Section 18 therein, has to be examined with care and caution. Section 2(aa) of the Apprenticeship Act, 1961 defines an "apprentice" as a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship. Section 2 (aaa) defines "apprenticeship training" to mean a course of training in any industry or establishment undergone in pursuance of a contract of apprenticeship and under prescribed terms and conditions. Section 4 makes it clear that no person shall be engaged as an apprentice to undergo apprenticeship training in a designated trade unless such person has entered into a contract of apprenticeship with the employer. Though the registration of such contract in terms of sub-section (4) of section 4 is now declared only to be directory and not mandatory in UPSEB case, the very execution of the contract is not held to be optional. Therefore unless it is shown by the petitioners that those engaged by them as apprentices, come within the definition of the word "apprentices" under the Apprentices Act, 1961, it is not open to them to take refuge under the bar contained in Section 18, which reads as follows:- "18. Apprentices are trainees and not workers  Save as otherwise provided in this Act, -

(a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker; and

(b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice."

56. Clause (b) of Section 18 declares the provisions of any law with respect to labour, inapplicable to or in relation to "such apprentice". These words "such apprentice" are used in Clause (b), with reference to what is contained in Clause (a) viz., "every apprentice undergoing apprenticeship training in a designated trade". Therefore it is only in respect of an apprentice, undergoing apprenticeship training in a designated trade in an establishment that the bar under Clause (b) would apply.

57. That there could be two types of apprentices, one under the Apprentices Act, 1961 and the other outside the purview of the said Act, has now come to be recognised by law. This is clear from the fact that Section 2(9) of the Employees' State Insurance Act, 1948, includes within the definition of the word "employee", any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 or under the Standing Orders of the establishment. Therefore an apprentice could either be one under the Apprentices Act, 1961 or one outside the purview of that Act. If he is one within the purview of the Act, the bar under Section 18 (b) may apply. Otherwise it may not.

58. In any event, Section 18(b) of the Apprentices Act, 1961, cannot be taken to have repealed either expressly or impliedly, the power of the State Government under Section 3(3)(a)(iii) of the Minimum Wages Act, 1948. As seen from the scheme of the Apprentices Act, 1961, a person takes avathar as an apprentice, by virtue of a contract of apprenticeship entered into under Section 4(1) of the Act. But Section 25 of the Minimum Wages Act, 1948, prohibits "contracting out" and declares as null and void, any contract or agreement, made before or after the commencement of the Act, if by such agreement, a right to receive minimum rate of wages is relinquished or reduced. If the appropriate Government thinks fit, it may exempt any class or section of employees or the employees in a locality, from the application of the provisions of the Minimum Wages Act, by virtue of the powers conferred by Section 26. So long as this power of exemption is not exercised by the Government, in relation to apprentices, it cannot be said that the power of the Government under the Minimum Wages Act, stands eclipsed by Section 18(b) of the Apprentices Act, 1961.

59. After all, the Supreme Court said in many places in UPSEB case, that the Apprentices Act, is a beneficial legislation in favour of apprentices and that an interpretation to the provisions of the Act, should advance the cause of apprentices. Viewed in that context, the bar under section 18 (b) cannot be taken to be for the benefit of the employer. Therefore to hold that the Minimum Wages Act stands excluded by virtue of Section 18(b) of the Apprentices Act, 1961, would be to work against the object of both the enactments. Harmonious construction of both the enactments, would advance the cause of apprentices and subserve the objects of both the enactments. Therefore the third contention of the petitioners is also liable to be rejected.

GROUND-4 (REFERENCES PENDING ADJUDICATION  BAR UNDER SECTION 3(2-A):

60. The next contention of the petitioners is on the strength of the language employed in Section 3(2-A) of the Minimum Wages Act, 1948. It reads as follows:-

"(2A) Where in respect of an industrial dispute relating to the rates of wages payable to any of the employees employed in a scheduled employments, any proceeding is pending before a Tribunal or National Tribunal under the Industrial Disputes Act, 1947 (14 of 1947), or before any like authority under any other law for the time being in force, or an award made by any Tribunal, National Tribunal or such authority is in operation, and a notification fixing or revising the minimum rates of wages in respect of the scheduled employment is issued during the pendency of such proceeding or the operation of the award, then, notwithstanding anything contained in this Act, the minimum rates of wages so fixed or so revised shall not apply to those employees during the period in which the proceeding is pending and the award made therein is in operation or, as the case may be, where the notification is issued during the period of operation of an award, during that period; and where such proceeding or award relates to the rates of wages payable to all the employees in the scheduled employment, no minimum rates of wages shall be fixed or revised in respect of that employment during the said period."

61. It is the contention of the learned Senior Counsel for the petitioners that sub section (2-A) of Section 3 comprises of two parts. By the first part, any notification fixing or revising the minimum rate of wages, issued during the pendency of an Industrial Dispute or during the period of operation of an award, relating to the rates of wages payable to any of the employees employed in a scheduled employment, is made inapplicable to those employees during the pendency of such dispute or during the operation of the award. In other words, there is no bar for the issue of a notification, but such notification will be kept in suspended animation, till the conclusion of the dispute or like proceeding or till the expiry of the duration of the award, in so far as the employees covered by the dispute or the award are concerned. By the second part, an embargo is placed on the power of the Government to issue any notification fixing or revising the minimum rate of wages, in respect of the entire employment, if the pending industrial dispute or the award in operation relates to the wages payable to all the employees in the scheduled employment.

62. According to the petitioners, several industrial disputes are pending and a few awards have also been passed in respect of all the employees. The learned counsel appearing for the Southern India Mills Association (petitioner in WP Nos.28782 and 28783 of 2008) has filed a list of Awards and Settlements governing the wages and the service conditions of workmen in Textile Mills in Tamil Nadu, whose details are as follows:- S.No.

Date

Description of the Settlement

1

Mr.M.Venkatramaya Award dated 19.6.1947

On conditions of labour in the textile industry in the Madras Presidency.

2

12(3) Settlement dated 25.9.1956

Duties, workloads, basic wages, were arrived for the mills in Coimbatore covering 41 mills.

3

Mr.K.Ramasamy Gounder Award dated 24.2.1959

Fixation of wage rates for different categories, fixation of Dearness Allowance and work loads for different categories of job.

4

12(3) Settlement before T.N.Lakshmi Narayanan IAS, Commissioner of Labour, Madras, dated 30.6.1960

Implementation of the recommendations of the first Central Wage Board.

5

12(3) Settlement before Mr.G. Kamalarathnam, Special Deputy Commissioner of Labour dated 5.9.1969

Implementation of the second Central Wage Board for the cotton textile industry.

6

12(3) Settlement before Mr.G. Kamalarathnam IAS Commissioner of Labour dated 9.3.1972

Revision of wages, Dearness Allowance, filling up of vacancies, occupational wages, recruitment etc.,

7

Proceedings of Commissioner of Labour Mr.G.Kamalarathnam IAS award dated 30.5.1972

Fixation of permanent strength and badli strength, payment of occupational wages, eligibility, fixation of superannuation age etc.,

8

18(1) Settlement dated 28.2.1974 I.D. 1 of 1974 (Justice K.Sadasivam award)

Revision of wages, Dearness Allowance.

9

18(1) Settlement dated 17.7.1979 I.D. 1 of 1979 (Justice Ramasamy award)

Revision of basic wages, Dearness Allowance, annual increment, providing casual leave and issue related shorter shifts.

10

Mr.K.E.Varadhan award dated 23.2.1987 I.D. 1 to 5 of 1985

Revision of basic wages, Dearness Allowance, HRA, casual leave, medical allowance etc., Revised the rate of wages of learners at Rs.8/- per day.

11

Mr.K.Natarajan award dated 29.11.1996 I.D. 1,2 and 3 of 1993

Revision of basic wages, Dearness Allowance, HRA, casual leave etc.,

Revised the rate of wages of learners at Rs.20/- per day.

63. In W.P.No.28741 of 2008, the Tamil Nadu Spinning Mills Association, has traced the history of industrial adjudications in the Textile Industry in the State of Tamil Nadu, from paragraphs-4 to 10 of the affidavit in support of the writ petition. The gist of the history runs as follows:- (a) The earliest award passed by the Industrial Tribunal dated 19.6.1947 relates to 66 Textile Mills.

(b) A settlement under Section 12(3) was entered into on 14.2.1956 before the Commissioner of Labour, pertaining to 41 Textile Mills in Coimbatore.

(c) In February 1969, an award was passed by the Industrial Tribunal relating to 32 new Mills.

(d) In I.D.Nos.1 to 3 of 1974, a Special Industrial Tribunal passed an award with respect to 120 Textile Mills and in I.D.No.1 of 1979, an award was passed with respect to 175 Mills.

(e) On 4.5.1984, the workmen of the Textile Mills constituted a Joint Action Council which sought revision of wages under a charter of demands dated 17.6.1985. After a conciliation failure report, the Government issued an order of reference on 15.7.1985. The Presiding Officer of the Tribunal Mr.K.E.Varadan, visited a number of Textile Mills, studied the patterns in different sizes of Mills with reference to spindlage and passed an award. (f) After the expiry of the award passed by Mr.K.E.Varadan, demands were again raised leading to I.D.Nos.1 to 3 of 1993, which concerned 726 Mills. The order of reference and the interim reliefs were challenged before this Court. (g) During the pendency of I.D.Nos.1 to 3 of 1993, individual settlements were entered into by several Mills and awards passed in terms thereof.

(h) In January 1999, the Joint Action Council issued notices to terminate the earlier award. Subsequently strike notices were issued in the year 2001. Thereafter, by G.O.(D) No.688, Labour and Employment Department, dated 13.9.2001, the Government referred the dispute to the Industrial Tribunal. The total number of Mills who were parties to the dispute, were 1692. One of the demands of the workmen, referred for adjudication by the Government, was as follows:- "Demand No.16:

"Whether the demand that the workmen should be classified as permanent and learners only; that permanent complement of workmen should be fixed based on the number of machines, that there should be leave reserve of 10% of permanent complement and that the learners should be paid Rs.50/- per day for the first three months and increased by Rs.10/- per day once in 3 months is justified? If not, to what relief they are entitled?" Subsequently, the Government constituted a Special Industrial Tribunal and by G.O.(D) No.570, Labour and Employment Department, dated 19.7.2002, the dispute referred to the Industrial Tribunal, Chennai, was withdrawn and transferred to the Special Industrial Tribunal, with the hope and direction that the adjudication would be completed within six months. But even after six years, the adjudication was not over and hence by G.O.(D) No.284, Labour and Employment Department, dated 5.8.2008, the request for continuance of the Special Industrial Tribunal was rejected and the Tribunal got wound up by 31.8.2008. However in the meantime, several Mills entered into bipartite settlements with the Unions and got consent awards passed.

64. In the light of the above factual details, it was contended by the learned Senior Counsel for the petitioners that there is a total embargo under the second limb of Section 3(2-A) for the Government to issue a notification fixing minimum rate of wages in respect of the very employment in Textile Mills. But this contention cannot be accepted for two reasons viz.,:- (a) It is not borne out by records that any proceeding is pending or an award is in operation, relating to the rates of wages payable to "all the employees in the scheduled employment". It is only if the petitioners are able to establish that the disputes now pending or the awards in operation, relate to the wages payable to all the employees, that the petitioners can take refuge under the second part of Section 3(2-A). (b) The definite case of the petitioners is that the persons for whose benefit the impugned notification has been issued, are not employees, within the meaning of the Minimum Wages Act, 1948, but are only apprentices. But under Section 2(s) of the Industrial Disputes Act, 1947, even an apprentice is a workman. This is why, even according to the petitioners, some of the disputes include the conditions of service of apprentices. But admittedly, not a single dispute now pending nor any award now in operation, relates to the apprentices, engaged under the Sumangali scheme or Thirumagal Thirumana Thittam. The impugned notification shows that it was primarily issued taking into account their plight. Therefore it is clear that one section of the work force or population in the Textile Mills, is not covered by a dispute or award. Consequently, the precondition found in the second part of Section 3(2-A) that the dispute or award should relate to all employees, is not satisfied.

65. There are admittedly several types of wages, viz., fair wage, living wage, industrial minimum wage and statutory minimum wage. What is fixed by the Government under the Minimum Wages Act, is only the statutory minimum wage. In Workmen of Reptakos Brett and Co. Ltd vs. Management {1992 (1) LLJ 340}, the Supreme Court held in paragraph-8 that the wage structure can be broadly divided into three categories viz., (i) basic minimum wage which provides bare subsistence and is at poverty-line level (ii) a fair wage which is a little above the basic minimum wage and (iii) the living wage, which comes at a comfort level. While referring to these three categories, the Supreme Court referred to the definition of "living wage" and "minimum wage", as propounded by The Fair Wages Committee, published in 1949, which was also broadly approved by the Supreme Court in Express Newspapers case {1961 (1) LLJ 339} and Standard Vacuum Refining Co. Of India case {1961 (1) LLJ 227}.

66. A rate of wage, which is lower than the statutory minimum wage, cannot be fixed either by an adjudicatory process or even by a contract between the employer and the employee. That by a contract, an employee cannot relinquish or reduce his right to a minimum rate of wages, is borne out by Section 25 of The Minimum Wages Act, 1948. That by an adjudicatory process, an employee should not be deprived of the bare minimum fixed or to be fixed under the Act, is what is borne out by the second part of Section 3(2-A). The last limb of Section 3(2-A) has to be read together with Section 25, in order to give a purposeful interpretation to the Act. In simple terms, the second part of Section 3(2-A) draws a line of control or Lakshman Rekha between the power of the executive and the power of the Court/Tribunal, just as Section 25 draws a dividing wall between the power of the parties to enter into a contract and the power of the executive. A contract to pay less than the minimum wages and not a contract to pay higher than the minimum wages, is what is prohibited by Section 25. Similarly, the power of the Tribunal to fix wages, is not circumscribed by the same parameters by which the power of the Government is circumscribed, in the matter of fixation of minimum wages. Therefore, the statutory directive, contained in the second part of Section 3(2-A), has to be understood only as an advice to the executive to switch over to the "hands-off mode", when a reference is pending adjudication or an award is in operation.

67. If the word "shall" appearing in the last limb of Section 3(2-A) is interpreted to be mandatory, the results may be disastrous. Take for example a case, where a dispute is referred for adjudication to arbitration under Section 10-A of the Industrial Disputes Act, 1947, by mutual agreement. Suppose a trade union which plays into the hands of the management submits to an award by consent, to receive less than the minimum rate of wages, the parties would have easily circumvented the bar under Section 25 and yet would take advantage of Section 3(2-A). Therefore the power of the Government to fix minimum rate of wages, cannot be said to be denuded by the latter part of Section 3(2-A). The latter part of Section 3(2-A) is to be understood only as a reminder to the Government of the respect to be maintained by the Government to the proceedings pending before a Tribunal or an award passed. Therefore the fourth contention of the petitioners is rejected.

68. As a matter of fact, in M/s.Jaydip Paper Industries vs. The workmen {AIR 1972 SC 605}, the Supreme Court upheld an award of the Industrial Tribunal fixing minimum wages at a rate higher than that fixed by the Government under the Act. It is seen from paragraph-10 of the said decision that it was during the pendency of the proceedings before the Tribunal that the notification by the Maharashtra Government fixing minimum rates of wages came into operation. In paragraph-13 of the said decision, the Supreme Court held that in the light of Section 3(2-A), the Tribunal was not bound by the rates of minimum wages fixed by the Government under Section 3. Neither the first part nor the second part of Section 3(2-A) was considered by the Supreme Court in the said case to operate as a bar.

69. Therefore I am of the considered view that the real object behind Section 3(2-A) is to prevent the Government from outwitting the industrial adjudication or over reaching an award. While the Government is primarily concerned with what is the rock bottom, to sustain the worker and his family, irrespective of the paying capacity of the employer, the Tribunal is concerned with the limits to which such rock bottom could be raised. Therefore the bar under Section 3(2-A) has to be understood as some what similar to a primary lending rate fixed by the Reserve Bank of India, allowing a play in the joints to the individual banks.

70. Even in Shivraj Fine Arts Litho Works vs. State Industrial Court, Nagpur and Others {AIR 1978 SC 1113}, an award known as Puranik award came to be passed on 26.10.1956. It was terminated by a notice and references were filed before the State Industrial Court under the C.P. And Berar Industrial Disputes Settlement Act, 1947, on 13.3.1961. During the pendency of these references, employees of other industrial concerns made demands and the State Government referred the matter under Section 39 to the State Industrial Court, by a notification dated 7.1.1965. The disputes covered the fixation of living wage, scales of wages and the grant of Dearness Allowance. But before making a reference under Section 39 on 7.1.1965, the State Government issued a notification dated 31.12.1964 fixing minimum rate of wages under the Minimum Wages Act. Subsequently the Industrial Court passed an award on 10.5.1968, dividing the employers into two classes on the basis of their financial capacity to pay. In respect of the employees of three employers, whose financial capacity was higher, the Industrial Court fixed rates and scales of wages. In respect of other units, the Court did not fix any rates and scales of wages on the ground that they had no adequate financial capacity. When the award was challenged by the respective units, the High Court issued certain directions, after upholding the classification made by the Industrial Court and the matters ultimately landed up in the Supreme Court.

71. The Supreme Court upheld the classification and also held that the appellants before the Court, who belonged to 'A' category, were liable to pay fair wages. But while modifying the order of the High Court in certain aspects, the Supreme Court, in paragraph-30 of its decision in Shivraj Fine Arts Litho Works case, disagreed with the view of the High Court that an industrial minimum should be fixed by the Tribunal even though it was fixed by the Government under Minimum Wages Act.

72. The decision in Shivraj Fine Arts case, was sought to be distinguished by the learned Senior Counsel appearing for the petitioners on the ground that the notification fixing minimum wages was anterior in point of time (31.12.1964) to the notification making a reference (7.1.1965). But such a distinction is correct only partially. The reference made by the Government on 7.1.1965 was in respect of industrial concerns other than those whose references Reference Nos.9, 10 and 11 of 1961 were already pending under Section 38-A, from 13.3.1961. Therefore the distinction sought to be made cannot be accepted. It is seen from the discussion in paragraphs-17 and 18 of the said decision that the dispute pending before the Tribunal was for fixation of fair wage and the Government was requested by the employees to fix a minimum wage. Therefore the fourth contention of the petitioners is also rejected.

GROUND-5 (FAILURE TO CONSTITUTE COMMITTEES OR ADVISORY BOARDS):

73. The next contention of the petitioners is that Section 5 of the Act prescribes two methods for the fixation of minimum wages, one under Clause (a) of sub section (1) of Section 5 and another under Clause (b) of the same sub section. Under Clause (a), the Government is obliged to constitute as many Committees and Sub Committees as it considers necessary, to hold enquiries and advise the Government. Under Clause (b), the Government may make a publication by way of notification in the Official Gazette, of proposals for the fixation of minimum wages and give an opportunity to persons likely to be affected thereby, to file objections. Thereafter, the Government may by notification fix or revise the minimum rate of wages, in accordance with the procedure prescribed under sub section (2) of Section 5. The proviso to sub section (2) obliges the Government to consult the Advisory Board, if the Government chooses to follow the method prescribed under Clause (b) of sub section (1) of Section 5.

74. Section 5 of The Minimum Wages Act, 1948, reads as follows:-

"5. Procedure for fixing and revising minimum wages. - (1) In fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act, or in revising minimum rates of wages so fixed the appropriate Government shall either - (a) appoint as many Committees and Sub Committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or

(b) by notification in the Official Gazette, publish its proposals for the information of persons likely to be affected thereby and specify a date, not less than two months from the date of notification, on which the proposals will be taken into consideration. (2) After considering the advice of the Committee or Committees appointed under Clause (a) of sub section (1), or as the case may be, all representations received by it before the date specified in the notification under Clause (b) of that sub section, the appropriate Government shall, by notification in the Official Gazette, fix, or, the case may be, revised the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provide, it shall, come into force on the expiry of three months from the date of its issue: Provided that where the appropriate Government proposes to revise the minimum rates of wages by the mode specified in Clause (b) of sub section (1), the appropriate Government shall consult the Advisory Board also."

75. There is no dispute about the fact that in the present case, the Government followed the method prescribed under Clause (b) of sub section (1) of Section 5. There is also no dispute about the fact that the Government did not consult the Advisory Board. The Government issued a draft notification in the Official Gazette as per Section 5(1)(b) under G.O.(2D).No.26, Labour and Employment Department, dated 16.5.2008. The petitioners in all these writ petitions and even individual mills (302 mills) as well as the unions filed objections. After expiry of the period of two months and after considering the objections, the final notification was issued under G.O.(2D) No.61, Labour and Employment Department, dated 7.11.2008.

76. That the Government has the discretion to choose any one of the two methods under Section 5(1), is already well accepted in view of the decision of the Supreme Court in Chandra Bhawan Boarding and Lodging vs. State of Mysore {AIR 1970 SC 2042}. Therefore the action of the Government in choosing the method stipulated in Clause (b), cannot be found fault with.

77. But the grievance of the petitioners is that if consultation had been made with the Advisory Board, in accordance with the proviso to Section 5(2), the Government could have been persuaded to balance the interests of both parties. Under Section 9 of the Act, an Advisory Board is to consist of persons to be nominated by the appropriate Government representing employers and employees, who shall be equal in number and independent persons not exceeding one third of the total number of members.

78. According to the petitioners, an Advisory Board duly constituted under Section 9, would have had representation from the employers, the employees and third parties and such an Advisory Board would have made suggestions objectively. Since no consultation with the Advisory Board was made, the impugned notification, according to the petitioners, is violative of Section 5(2).

79. But the above contention cannot be accepted, at least for two reasons:-

(i) As rightly contended by the learned counsel appearing for the Unions and the learned Additional Advocate General, Section 5 confers two types of powers viz., the power to fix minimum rate of wages and the power to revise the minimum rate of wages. Sub section (1) of Section 5 covers both contingencies viz., fixation of minimum wages and revision of minimum wages. Sub section (2) also covers both contingencies, viz., fixation as well as revision, under either of the two methods prescribed under Clause (a) or (b) of sub Section (1). But the proviso under sub section (2) is carefully worded, in order to cover only the revision of minimum rate of wages and not the fixation for the first time. In other words, the phraseology "in fixing or in revising" used consistently -- ---in the first part of sub section (1);

---in Clause (a) of sub section (1); and

---in sub section (2) of section 5

are conspicuously absent in the proviso under sub section (2). The proviso uses only the word "revise". It does not use the phraseology "in fixing or in revising", despite the fact that such phraseology is used at least in three places, before the proviso. It is not open to this Court to read the word "fixing", in the proviso to sub section (2) by supplying the causus omisus. The omission is perhaps with a purpose. Therefore I cannot accept the contention that the proviso mandates consultation with the Advisory Board even in cases where minimum rate of wages are fixed for the first time. (ii) In any event, the advise of the Committee or the Advisory Board are not binding on the Government. The purpose of consultation with the Committee or the Advisory Board is to enable the Government to have necessary inputs, so as to take into account relevant factors before arriving at a final decision. That purpose has been achieved in this case, by the Government inviting objections and the petitioners as well as a number of mills and the unions submitting their suggestions and objections. Apart from having the benefit of the inputs from the objectors, the Government has also had the benefit of the recommendations made by various District Monitoring Committees constituted in pursuance of the order passed by the Division Bench of this Court on 3.10.2007 in the public interest litigation, W.P.No.27362 of 2007. These Monitoring Committees comprised of the District Collector, the Deputy Commissioner of Labour, the Deputy Chief Inspector of Factories, a representative appointed by the District Legal Services Authority and one woman NGO nominated by the concerned District Legal Services Authority. Except that these Committees did not have representatives from the employers and the employees, no fault or motive could be attributed to them. As a matter of fact, the District Collectors are empowered by the Government to fix the daily rates of wages payable to persons engaged in the Nominal Muster Roll, in their respective Districts, even in the Public Works Department. Therefore, the concept relating to fixation of minimum rate of wages, is not alien to a District Collector or even to the Deputy Commissioner of Labour or Deputy Chief Inspector of Factories. An Advisory Board if constituted, would have comprised of (i) neutral persons, (ii) representatives of employers and (iii) representatives of employees in equal number. The District Monitoring Committees replaced the neutral persons. The employees have no grievance as they have not come up against the impugned notification. Therefore the only group said to have been left out of the consultative process, by the non-constitution of the Advisory Board, is the employers. But this is compensated or off-set by the preliminary notification and the objections sent by the Managements of various Mills and the consideration of those objections by the Government before issuing the final notification. Therefore, the failure of the Government to consult the Advisory Board, cannot be taken to have vitiated the impugned notification.

80. In Edward Mills Co. Ltd vs. State of Ajmer {AIR 1955 SC 25), the Supreme Court held that a Committee appointed under Section 5 is only an Advisory Body and that the Government is not bound to accept any of its recommendations. Therefore in the last paragraph of the said decision, it was held that "procedural irregularities could not vitiate the final report that fixed the minimum wages".

81. In fact, in order to over come such technical objections regarding the constitution of Committees etc., the State of Tamil Nadu introduced a State Amendment under Tamil Nadu Act 47 of 1981, inserting Section 9-A to The Minimum Wages Act, 1948. This Section 9-A saves (i) an order of the State Government nominating a person to the Advisory Board or a Committee and (ii) any Act or proceeding before such Board or Committee. Therefore Section 9-A though not hitting the nail on the head, is indicative of the legislative intent that technicalities should not annul the minimum rates of wages fixed by the Government, in fulfilment of the constitutional goal enunciated in Article 43, which reads as follows:- "Article 43. The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas."

82. In paragraph-9 of its decision in Chandra Bhawan Boarding and Lodging vs. State of Mysore {AIR 1970 SC 2042}, the Constitution Bench of the Supreme Court held as follows:-

"The mandate of Article 43 of the Constitution is that the State should endeavour to secure by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. The fixing of minimum wages is just the first step in that direction. In course of time the State has to take many more steps to implement that mandate."

83. Thus the fixation of minimum rate of wages, is not merely the exercise of a statutory function, but also one that is intended to achieve the constitutional goal. Even if the goal is scored, by a penalty corner, it is not fair to declare the game foul. Therefore it is wholly unacceptable to say that the failure of the Government to consult the Advisory Board, in accordance with the proviso to sub section (2) of Section 5, vitiated the impugned notification.

84. In Tourist Hotel vs. State of Andhra Pradesh {1975 (1) LLJ 211}, a Division Bench of the Andhra Pradesh High Court held that the exercise of power under Section 5 by the Government, is neither an administrative nor a quasi judicial act, but a legislative function delegated to the Government by the Parliament under Section 5 of the Act. It was also held in the same case that under Section 5, the ultimate Judge of what should be the minimum rate of wages is the Government and not the Committee nor even the Court. In Union of India -vs- Cynamide India Ltd., {AIR 1987 SC 1802}, the Supreme Court held that legislative action, plenary or subordinate, is not subject to rules of natural justice. It was also held therein that when the legislature directs the subordinate legislating body to make such enquiry at it thinks fit, the making of the enquiry is a condition precedent but the nature and extent of such enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is not open to question on the ground that the enquiry was not full as it might or ought to have been.

85. In Ministry of Labour and Rehabilitation vs. Tiffin's Barytes Asbestos and Paints Ltd {1985 (2) LLJ 412}, a challenge was made by the owners of Manganese, Gypsum, Barytes and Bauxite Mines to a notification fixing minimum rates of wages of certain categories of employees, employed in those Mines. The main ground of attack was that the Committee appointed by the Government of India, was not properly constituted. While rejecting the challenge, the Supreme Court held as follows:- "Notification fixing minimum wages cannot be lightly interfered with in exercise of writ jurisdiction by the High Courts on the ground of some irregularities in the constitution of the Committee or the procedure adopted by the Committee. Committee acts only as a recommendatory body, and minimum wages are fixed only by the Government. In a country where wages are already minimal a notification fixing minimum wages should not be interfered with under Article 226 of the Constitution of India except on the most substantial of grounds. Action taken pursuant to a social welfare legislation to further the Directive principles of State Policy cannot be struck down on mere technicalities." Therefore I am unable to sustain the fifth ground of attack to the impugned notification.

GROUND-6 (COLOURABLE EXERCISE OF POWER):-

86. It is next contended by the petitioners that the whole exercise of the Government is nothing but a colourable exercise of power and vitiated by malice in law, in view of the fact that the Government over looked the statutory provisions and went ahead with the fixation of minimum wages, purely on account of the public interest litigation, the orders passed therein, the District Monitoring Committees constituted in pursuance thereof and their recommendations. According to the petitioners, all the procedures prescribed by the statute were observed more in breach than in compliance and the notification was issued in haste, due to the pressure exerted by the trade unions and that therefore the notification is liable to be set aside.

87. I do not think that the petitioners are justified in making such a complaint. The genesis of the notification is not just the writ petitions filed by a few trade unions, in which the Division Bench ordered the constitution of Monitoring Committees. The constitution of District Monitoring Committees, in the first instance, was made even before the writ petitions, under G.O.Ms.No.62, Labour and Employment Department, dated 30.3.2007, which was superseded later by G.O.Ms.No.137, Labour and Employment Department, dated 22.6.2007. In fact, the writ petitions filed by the Trade Unions in W.P.Nos.21868 and 27362 of 2007, were actually against those two Government Orders and for the abolition of what they termed as Camp Coolie System in the Mills. The Trade Unions did not come to Court, seeking a direction to the Government to fix minimum wages. The fixation of minimum wages came as a by-product of the writ petitions challenging the constitution of Monitoring Committees. Therefore the notification cannot be challenged on the basis of any motive or mens rea behind the same.

88. In the public interest litigation now pending before the Division Bench of this Court, seeking abolition of what is alleged to be the Camp Coolie System, the District Monitoring Committees of various Districts have filed their reports. Taking me through the contents of those reports, Mr.A.L.Somayaji, learned Senior Counsel for one of the petitioners, submitted that the women apprentices have accepted employment on certain terms without any murmur and that there was no complaint by any of those women apprentices, either to the Monitoring Committees or to any other authority. On the basis of these reports, the learned Senior Counsel contended that when the Textile Mills had resorted to an innovative system of engagement of apprentices, within the frame work of law, the Trade Unions made much ado about nothing, forcing the Government to come up with the impugned notification. Therefore the learned Senior Counsel assailed the notification as a product of colourable exercise of power.

89. But I am not in this case concerned, with either the legal issue or the ethical/moral issues regarding the employment of women in the Textile Mills, in the garb of apprentices. The Division Bench is already seized of the matter. Therefore I have no opinion to express, on the correctness or otherwise of the engagement of those women, as it would encroach into the lis pending before the Division Bench.

90. I am concerned in this case, solely with the validity of the impugned notification fixing minimum rate of wages for apprentices employed in Textile Mills. Therefore I have avoided treading on that path relating to the conditions in which and the conditions subject to which, women are engaged in Textile Mills under the scheme "Thirumagal Thirumana Thittam", though the learned counsel appearing on both sides extensively read out, passages from the reports of the District Monitoring Committees.

91. I am making a reference to these Monitoring Committees only for the purpose of dealing with the objection raised by the petitioners that the Government was guided by the reports of those Committees, for fixing the minimum rates of wages. According to the petitioners, these Monitoring Committees are not the kind of Committees contemplated under Section 5(1)(a) of the Minimum Wages Act and that therefore the action of the Government in going by their reports, amounted to colourable exercise of power.

92. However I am unable to accept the contention that the consideration of the reports of the Monitoring Committees amounted to colourable exercise of power. It was indicated by the Supreme Court in Chandra Bhawan's case {AIR 1970 SC 2042} that the purpose of constitution of a Committee under Section 5(1)(a), was to collect necessary data. If the Government was already in possession of sufficient data, it may take recourse to Section 5(1)(b). Thus the object behind Section 5(1)(a) or 5(1)(b) is only to collect data. Fortunately for the Government, the data with regard to most of the Districts where Textile Mills are located, came to be gathered and submitted by District Monitoring Committees. With the data so collected, the Government opted to take the notification route under Section 5(1)(b) and more than about 300 Mills, apart from their Associations, filed objections and suggestions. Therefore it can never be called a colourable exercise of power.

93. The International Labour Organisation's Governing Body has identified 8 Conventions as "fundamental", covering subjects which are considered as fundamental principles and rights at work. They are:-

(1) Freedom of Association and Protection of the Right to Organize Convention, 1948 (no.87)

(2) Right to Organize and Collective Bargaining Convention, 1949 (No.98)

(3) Forced Labour Convention, 1930 (No.29)

(4) Abolition of Forced Labour Convention, 1957 (No. 105)

(5) Minimum Age Convention, 1973 (No.138)

(6) Worst Forms of Child Labour Convention, 1999 (No.182)

(7) Equal Remuneration Convention, 1951 (No.100)

(8) Discrimination (Employment and Occupation) Convention, 1958 (No.111)

94. India has ratified Convention Nos. 29, 105, 100 and 111. In 1998, ILO adopted a "Declaration on Fundamental Principles and Rights at Work", which is an expression of commitment by governments and organisations of workers and employers, to uphold basic human values- values that are vital to social and economic lives. This declaration covers 4 fundamental principles and rights at work, viz., (1) Freedom of Association and the effective recognition of the right to collective bargaining (2) Elimination of all forms of Forced or compulsory labour (3) Effective abolition of child labour and (4) Elimination of discrimination in respect of employment and occupation.

95. The Equal Remuneration Convention, 1951, ratified by India defines the word "remuneration" to include the ordinary, basic or minimum wage or salary, payable directly or indirectly, whether in cash or kind. Article 1 of the Convention requires the member States to promote and ensure the application to all the workers of the principle of equal remuneration for men and women workers for work of equal value. Article 2 of the Convention obliges the member States to apply the above principle by means of national laws or regulations or legally established or recognised machinery for wage determination. Article 51 (c) of the Constitution obliges the State to endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.

96. Therefore, the fixation of minimum rate of wages, is towards fulfilment of the obligations under the above International Conventions and the Directive Principles of State Policy. The Constitution Bench of the Supreme Court in Chandra Bhawan Boarding and Lodging, Bangalore vs. State of Mysore and another {AIR 1970 SC 2042} held as follows:- "Prima facie the rates fixed for hotel industry appear to be reasonable. We are not convinced that the rates prescribed would adversely affect the industry or even a small unit therein. If they do, then the industry or the unit as the case may be has no right to exist. Freedom of trade does not mean freedom to exploit. The provisions of the Constitution are not erected as the barriers to progress. They provide a plan for orderly progress towards the social order contemplated by the preamble to the Constitution. They do not permit any kind of slavery, social, economic or political." "The mandate of the Constitution is to build a welfare society in which justice social, economic and political shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met."

97. It is in Chandra Bhawan's case, that the Supreme Court pointed out that the Act prescribes two different procedures for collecting necessary data, one found in Section 5(1)(a) and the other found in Section 5(1)(b). The Supreme Court made it very clear that in either case, it is merely a procedure for gathering the necessary information and that the Government is not bound by the advice given by the Committee appointed under Section 5(1)(a). The Court also noted in paragraph-9, the mandate of Article 43 of the Constitution and held that the State should endeavour to secure by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work, ensuring a decent standard of life. Referring to the Geneva Convention, the Court held as follows:- "As seen earlier the resolution of the Geneva Convention of 1928 which had been accepted by this country called upon the covenanting States to fix minimum wages for the employees in employments where the labour is unorganized or where the wages paid are low. Minimum wage does not mean wage just sufficient for bare sustenance. At present the conception of a minimum wage is a wage which is somewhat intermediate to a wage which is just sufficient for bare sustenance and a fair wage. That concept includes not only the wage sufficient to meet the bare sustenance of an employee and his family. It also includes expenses necessary for his other primary needs such as medical expenses, expenses to meet some education for his children, and in some cases transport charges etc."

98. It was vehemently contended on behalf of the petitioners that the Government actually fell into a trap by the propaganda carried out by the Trade Unions that the schemes "Thirumagal Thirumana Thittam" and "Sumangali Scheme" were nothing but forced/bonded labour. It was argued on behalf of the petitioners that the decision to notify the Textile Industry and to notify minimum rate of wages for apprentices, was greatly influenced by such vilification campaign and that therefore the notification is vitiated by malice in law.

99. But unfortunately for the petitioners, while construing the reach of Article 23 of the Constitution, the Supreme Court held in People's Union for Democratic Rights vs. Union of India {AIR 1982 SC 1473}, that "where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23". It was also held therein that "the word 'force' must be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage".

100. In State of Gujarat vs. Hon'ble High Court of Gujarat {1998 (7) SCC 392}, a question arose whether prisoners who are required to do labour as part of their punishment, should necessarily be paid wages for such work at the rates prescribed under the minimum wages law. It was held in paragraph-37 of the said judgment that the minimum wage sufficient to meet the bare physical needs of a workman and his family irrespective of the paying capacity of the industry must be something more than subsistence wage which may be sufficient to cover the bare physical needs of the worker and his family including education, medical needs, amenities adequate for preservation of his efficiency. But before holding so, the Supreme Court expressed in paragraph-21, its agreement with the view taken in People's Union for Democratic Rights case, about what amounts to forced labour.

101. Therefore if the Government had taken note of certain facts, even if brought to light by somebody with a motive, the Government cannot be stated to have acted on extraneous considerations or with malice in law, so long as the objective of such action is towards fulfilment of the Constitutional goals under Articles 23 and 43.

102. The contention that the women apprentices employed in these Mills under the 'Thirumagal Thirumana Thittam' or the other scheme, never made any complaint, is no ground to divest the power of the Government under the Act. It was observed by the Constitution Bench of the Supreme Court in U.Unichoyi vs. State of Kerala {AIR 1962 SC 12} as follows:- "In an underdeveloped country which faces the problem of unemployment on a very large scale, it is not unlikely that labour may offer to work even on starvation wages."

Therefore, the fact that the women concerned made no complaints, is like saying that all women are deemed to be happy with their marital lives, so long as they do not complain.

GROUND-7 (DIFFERENT RATES FOR APPRENTICES IN DIFFERENT INDUSTRIES):

103. The petitioners contend that apprentices are only learners, irrespective of the industry in which they are engaged for the purpose of training or learning. Therefore the petitioners contend that different rates of minimum wages cannot be fixed for apprentices in different industries.

104. In my considered view, the above contention has to be stated only to be rejected, for the following reasons:-

(a) At the outset, the Act does not stipulate that the minimum rate of wages fixed for apprentices in all industries should be the same. Nor is there any restriction in the Act, on the power of the Government to fix different rates of minimum wages for apprentices in different industries. Section 3(3)(a) of the Act, reads as follows:- "Section 3(3)(a): In fixing or revising minimum rates of wages under the Section,

(a) different minimum rates of wages may be fixed for -

(i) different scheduled employments;

(ii) different classes of work in the same scheduled employment;

(iii) adults, adolescents, children and apprentices;

(iv) different localities."

Therefore a restriction, as contended by the petitioners, cannot be read into the above provision.

(b) The reliance placed by the petitioners on the judgment of a Division Bench of this Court dated 7.12.2001 in a batch of review applications R.A.Nos.49, 50, 53 to 55 of 1999, is actually misplaced. The Division Bench did not lay down as a principle of law that different rates of minimum wages cannot be fixed for persons carrying on similar types of work in different industries. In paragraph-27(H) of the decision of the Division Bench, the Division Bench observed that there is no reason to fix different minimum wages for drivers, watchman, typist or clerk in Footwear or Leather Industry, while fixing higher salary in manufacturing of leather or leather goods. Thus it appears that the Division Bench was concerned with different types of employment in allied industries. Therefore, the same principle cannot be applied here, since there is nothing on record to show that in any allied industry, a different rate of minimum wages has been fixed for apprentices.

105. The learned Senior Counsel for the petitioners also rely upon the decision of a learned Judge of the Karnataka High Court in Aspinwal and Co. Ltd. vs. State of Karnataka {69 FJR 15}, in paragraph-20 of which, while dealing with the tailoring industry, the learned Judge held that "the wages fixed for typists in all the employments must be the same unless there is special reason for fixing wages at a higher rate in respect of any particular employment." But in a subsequent portion of the same judgment, (in internal page No.59), the learned Judge also held that minimum wages cannot be a flat rate for all types of employees in all types of employments irrespective of the nature and type of work. The learned Judge also recognised the fact that the nature of work in one employment may differ from another and that in the same employment, the nature of work of one class of employees may differ from another. However, the learned Judge opined that there are certain kinds of work whose nature is similar, irrespective of the employments, say for example typists. It is in that context, that the learned Judge held that the fixation of higher wages for typists, office boys and other skilled employees in the tailoring industry, was without justification. But the same logic cannot be applied to the case on hand. Apprentices in all industries cannot be taken to form a single unitary class, for the purpose of fixation of minimum rate of wages. Even though they are learners, apprentices are not mere observers or witnesses to what happens in the industry in which they are employed. To be able to learn, an apprentice should actually participate in the particular process of production or whatever it be. In other words, an apprentice is bound to carry out certain tasks. These tasks would differ from industry to industry. For a driver or a typist, (with which the Karnataka case was concerned), there is virtually no difference in the kind of task that they perform irrespective of the nature of the industry in which he is employed. But it is not the same case with an apprentice. Therefore I am unable to accept the contention that different rates of wages cannot be fixed for apprentices in different industries.

GROUND-8 (INCLUSION OF D.A. BY WAY OF EXPLANATION):

106. The next ground of attack of the petitioners is that the power conferred upon the Government is only to fix the minimum rate of wages. But by the impugned notification, the Government fixed the minimum rate of wages as Rs.110/- per day and added an explanation for the payment of Dearness Allowance, in addition to the above amount. This, according to the petitioner, is ultra vires the provisions of the Act.

107. It is true that in the Gazette Notification published on 7.11.2008, the Government fixed the minimum rate of wages payable to the apprentices engaged in the employment in Textile Mills, as Rs.110/- per day. In the "Explanation", the notification stipulated that in addition to the minimum rate of wages, the apprentices should be paid Dearness Allowance as specified in Clauses (i), (ii) and (iii) of the Explanation (1). Therefore, the petitioners contend that the notification has gone beyond the powers conferred under the Act.

108. In order to test the above contention, it is necessary to see the definition of the word "wages" under the Act. There is no dispute about the fact that Section 3 empowers the Government to fix the minimum rate of "wages". Therefore it is essential to see the definition of the word in Section 2(h), which goes as follows:- "(h) "wages" means all remunerations, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes house-rent allowance, but does not include - (i) the value of -

(a) any house-accommodation, supply of light, water, medical attendance, or

(b) any other amenity or any service excluded by general or special order of the appropriate Government;

(ii) any contribution paid by the employer to any Pension Fund or Provident Fund or under any scheme of social insurance;

(iii) any travelling allowance or the value of any travelling concession;

(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(v) any gratuity payable on discharge."

109. By its very definition, the word "wages", includes even house-rent allowance. Therefore there is no justification to contend that Dearness Allowance cannot be added. In any event, Section 4 clears any air of doubt one may have on this aspect and it reads as follows:- "4. Minimum rates of wages  (1) Any minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employments under section 3 may consist of -

(i) a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the "cost of living allowance"); or (ii) a basic rate of wages with or without the cost of living allowance, and the cash value of the concessions in respect of supplies of essential commodities at concession rates, where so authorised; or

(iii) an all inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any.

(2) The cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates shall be computed by the competent authority at such intervals and in accordance with such directions as may be specified or given by the appropriate Government."

110. In Hydro (Engineers) Pvt Ltd vs. Workmen {AIR 1969 SC 182}, the Supreme Court held as follows:-

"The concept of minimum wage, as indicated in Section 4 does take in the factor of the prevailing cost of essential commodities whenever such minimum wage is to be fixed. The idea of fixing such wage in the light of cost of living at a particular juncture of time and of neutralising the rising prices of essential commodities by linking up scales of minimum wages with the cost of living index cannot, therefore, be said to be alien to the concept of a minimum wage. Furthermore, in the light of spiralling of prices in recent years, if the wage scales are to be realistic, it may become necessary to fix them so as to neutralise at least partly the price rise in essential commodities." Therefore what the Government has included by way of Explanation in the impugned notification, is only what is authorised by Section 4. So long as the power of the Government to fix a basic rate of wages along with a special allowance, based on the variation in the cost of living index, is conceded, it is wholly irrelevant, whether it is added by way of Explanation or otherwise. Therefore the contention of the petitioners in this regard, cannot be accepted.

111. Relying upon the decision of the Supreme Court in S.Sundaram vs. V.R.Pattabiraman {AIR 1985 SC 582}, which was quoted with approval in M.P.Cement Manufacturers' Association vs. State of M.P. {2004 (2) SCC 249}, it was contended on behalf of the petitioners that an "Explanation" added to a statutory provision is not a substantive provision, but meant only to explain or clarify certain ambiguities which may have crept into the statutory provision. But the said decision has no relevance to the issue on hand. That decision arose out of a question relating to the interpretation of the term "wilful default" under The Tamil Nadu Buildings (Lease and Rent Control) Act. Since the provision for eviction on the ground of wilful default under Section 10(2) of the Act, contained an explanation, which qualified the term, the Supreme Court considered the effect of the explanation on the substantive provision, by applying the rules relating to statutory interpretation. But we are not here concerned with any interpretation to a statutory provision. We are concerned with a notification issued under a statute, whereby the Government chose to indicate a basic rate in the main part of the notification and the allowance based upon cost of living index, by way of explanation. Therefore the same cannot be found fault with.

GROUND-9 (FIXATION ON AD HOC BASIS):

112. It is finally contended that the Government is not entitled to fix minimum rate of wages on ad hoc basis. According to the petitioners, the fixation has to be based upon certain parameters. In this regard, the petitioners rely upon the decisions of the Supreme Court in (1) Unichoyi vs. State of Kerala {1961 (1) LLJ 631} and (2) Workmen of Reptakos Brett and Co. Ltd vs. Management {1992 (1) LLJ 340}.

113. In Unichoyi case, the Supreme Court accepted the recommendations of the Committee constituted by the Government of Kerala that a minimum wage must provide not merely for the bare subsistence of life, but for the preservation of the efficiency of the worker and so it must also provide for some measure of education, medical requirements and amenities.

114. In Reptakos Brett case, the Supreme Court referred in paragraph-10 of its decision, to the five norms laid down by The Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957, which are as follows:- "(i) In calculating the minimum wage, the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women, children and adolescents should be disregarded.

(ii) Minimum food requirement should be calculated on the basis of a net intake of calories, as recommended by Dr.Aykroyd for an average Indian adult of moderate activity.

(iii) Clothing requirements should be estimated at per capita consumption of 18 yards per annum which would have for the average worker's family of four, a total of 72 yards.

(iv) In respect of housing, the rent corresponding to the minimum area provided for under Government's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage.

(v) Fuel, lighting and other 'miscellaneous' items of expenditure should constitute 20% of the total minimum wage."

115. To the above list of five norms, the Supreme Court added one more component in paragraph-12 of the decision in Reptakos Brett case and emphasised the need for taking into account all the six components, in paragraph-13. Both these paragraphs are extracted as follows:- "12. The concept of 'minimum wage' is no longer the same as it was in 1936. Even 1957 is way-behind. A worker's wage is no longer a contract between an employer and an employee. It has the force of collective bargaining under the labour laws. Each category of the wage structure has to be tested at the anvil of social justice which is the live-fibre of our society today. Keeping in view the socio-economic aspect of the wage structure, we are of the view that it is necessary to add the following additional component as a guide for fixing the minimum wage in the industry:- "(vi) children education, medical requirement, minimum recreation including festivals/ceremonies and provision for old age, marriages, etc should further constitute 25% of the total minimum wage."

13. The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsistence level. The employees are entitled to the minimum wage at all times and under all circumstances. An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry."

116. Reptakos Brett case, arose out of an Industrial Dispute referred for adjudication to the Industrial Tribunal, on the issue whether the demand of the Management for restructuring the Dearness Allowance Scheme was justified or not. The Tribunal directed the Company to link the Dearness Allowance to the cost of living index. The issue of restructuring of Dearness Allowance alone went upto the Supreme Court. It was in that context that the Supreme Court referred to the concepts of fair wage, living wage and minimum wage and referred to the components that would a constitute minimum wage.

117. Therefore neither the decision in Unichoyi case nor the judgment in Reptakos Brett case, is to be understood as one, laying down as a principle of law, that if a notification fixing minimum wages does not give the break-up of the minimum wages into those six components, it would be bad in law.

118. In paragraph-5 of G.O.(2D) No.61, Labour and Employment Department, dated 7.11.2008, the Government had stated that it had taken into consideration, various factors like the existing low wages paid to the apprentices, the rapid changes in the consumer price index adversely affecting the living conditions of workers and the representations of various Trade Unions, apart from the directions issued by the Division Bench in the public interest litigation, while issuing the notification. Therefore the notification cannot be said to be without application of mind, on the basis that the minimum rate of wages fixed, did not give the break up of those six components.

119. The petitioners have filed (i) the recommendations of the Committee with regard to fixation of minimum wages in granite industry (ii) the notification issued in respect of the employment in Public Motor Transport (iii) a comparative chart showing minimum wages in respect of unskilled workmen in various industries and (iv) the comparative chart of minimum wages in other States. I have carefully gone through each one of them. The comparison of the impugned notification with the statistics contained in those statements, would not take us anywhere. As I have observed earlier, it is not within the domain of this Court to determine what is the minimum rate of wages to be paid for a particular category of persons, in an employment. Once it is accepted that different rates of minimum wages could be fixed for different industries and different areas, comparisons become insignificant. Therefore I cannot accept the contention that the present notification fixes a higher minimum rate of wages for the apprentices in Textile Mills.

VALIDITY OF SECTION 3(3)(a)(iii):

120. In W.P.No.28783 of 2008, the petitioner challenges the constitutional validity of Section 3(3)(a)(iii) of the Act, on the ground that an apprentice is not an employee within the meaning of Section 2(i) of the Act and that therefore, the inclusion of apprentices as one of the categories in respect of whom minimum wages can be fixed by the Government, is opposed to the scheme of the Act.

121. But it is now well settled that the vires of a statutory provision can be challenged only if it is violative of the fundamental rights or if it is beyond the competence of the Parliament or the Legislature, as the case may be, to enact the same, in the light of the Lists contained in the Seventh Schedule to the Constitution. No such challenge is made in this writ petition. A challenge to the provision of a statute, on the ground that it goes against the scheme of the Act, is so weak a ground that it cannot stand scrutiny, even for a minute, especially when such a provision has remained in the statute book for more than 60 years.

122. As a matter of fact, several attempts were made to challenge the Constitutional validity of the Act itself, in the past, but in vain. In one of the earliest cases, Edward Mills Co. vs. State of Ajmer {AIR 1955 SC 25}, the validity of Section 27 of the Act, was challenged on the ground of excessive delegation. But the challenge was rejected. In Bijay Cotton Mills Ltd vs. State of Ajmer {AIR 1955 SC 33}, the Supreme Court was invited (as seen from paragraph-2 of the judgment) to hold the material provisions of the Act (Sections 3, 4 and 5), to be violative of fundamental rights. But rejecting the contention, it was held that to secure living wages to labourers, is one of the Directive Principles of State Policy embodied in Article 43 of the Constitution and that the material provisions of The Minimum Wages Act, 1961, are not illegal and ultra vires. It was further held therein that the restrictions imposed by the Act, upon the employers, though would interfere to some extent with the freedom of trade or business guaranteed under Article 19(1)(g), were reasonable restrictions and are protected by Clause (6) of Article 19.

123. Again in U.Unichoyi vs. State of Kerala {AIR 1962 SC 12}, an attempt was made by the learned counsel for the petitioner to challenge the validity of the Act. But the attempt was nipped in the bud by the Constitutional Bench, with the following observations:- "In view of these two decisions {Edward Mills and Bijay Cotton Mills}, we have not allowed Mr.Nambiar to raise any contentions against the validity of the Act. It is true that Mr.Nambiar attempted to argue that certain aspects of the matter on which he wished to rely had not been duly considered by the Court in Bijay Cotton Mills case. In our opinion, it is futile to attempt to reopen an issue which is clearly concluded by the decisions of this Court. Therefore we will proceed to deal with the present position as we must, on the basis that the Act, under which the Committee was appointed and the notification was ultimately issued is valid."

124. Again in M/s.Bhikusa Yamasa Kshatriya vs. Sangamner Akola Taluka Bidi Kamgar Union {AIR 1963 SC 806}, a writ of declaration was filed before the High Court of Bombay for declaring Section 3(3)(iv) of the Act, as unconstitutional. The High Court dismissed the writ petition and the Management went before the Supreme Court. While dealing with the challenge, the Supreme Court first referred to the ratio laid down in Bijay Cotton Mills case, to the effect that having regard to the scheme of the Act and the purpose for which it was enacted, namely to secure to workmen in the enjoyment of minimum wages and to protect against exploitation it was necessary to put restraints upon their freedom of contract and such restraints could not be regarded in any sense as unreasonable. The Supreme Court then referred to the observations in Unichoyi case, and held in paragraph-4 as follows:- "(4) The plea that fixation of minimum rates by Notification under Section 3 violates the fundamental freedom under Article 19(1)(f) is in view of the decisions of this Court not open to be canvassed by the appellants." Ultimately, in paragraph-9, the Supreme Court held that Section 3(3)(iv) did not contravene Article 19(1)(f) of the Constitution nor did it infringe the equal protection clause of the Constitution. Therefore it is not open for any one to reopen a challenge to the vires of the Act, under any pretext, at this distance of time.

125. In any case, the challenge to the vires of section 3(3)(a)(iii) is not made on any well accepted principles on which such challenges are possible. Therefore it is liable to be rejected.

CONCLUSION:-

126. In fine, all the writ petitions fail and they are dismissed with no order as to costs. Consequently, all the miscellaneous petitions are also dismissed.

Svn

To

1. The Secretary to Government,

State of Tamil Nadu,

Labour and Employment Department,

Fort St. George,

Chennai-9.

2.Coimbatore District Mill Workers' Union

(CITU), No.127, Anupparpalayam,

Coimbatore  641 009.

3.Coimbatore (East) District Panchalai

Thozhilalar Sangam,

Thiyagi Palanisamy Nilayam,

No.447, Avinashi Road,

Tiruppur  641 607.

4. Tamil Nadu Joint Action Council of

Textile Trade Unions, represented by

its Secretary, No.27, Mosque Street,

Chepauk, Chennai  600 005.

5.The District Anna Panchalai Thozhilalar

Sangam (Regn. No.14/Anna) represented

by its District Secretary Thiru V.Jeyaraman,

Having office at 4D, Scheme Road,

Dindigul-1.

6.The Kovai District Panchalai Anna

Thozhilalar Sangam (Relgn.No.292/76),

represented by its President

Thiru V.K.Dhanagopalan.

7.The Coimbatore District Textile Workers

Union (HMS) represented by its

General Secretary,

No.2212 Trichy Road,

Singanallur,

Coimbatore  641 005.

8.Coimbatore District Mill Workers,

Union (AITUC) represented by its

Secretary, No.99, R.K.Street,

Kattor,

Coimbatore - 641 009.

9.Indian National Trade Union Congress

(Tamil Nadu Branch) represented by

its Vice President, No.45, Royapettah

High Road, Chennai  600 014.

10.Kovai Mavatta Panjalai Anna Thozhilalar

Sangam, represented by its President,

No.102, Grey Town,

Coimbatore  641 018.

11.Coimbatore Periyar Districts Dravida Panchalai

Thozhilalar Munnetra Sangam, represented

by its General Secretary, No.69, Tata

Bad Street-3,

Coimbatore  641 012.

12.Dindigul Panchalai Marumalarchi Thozhilalar

Munnani, represented by its General

Secretary (Regn. No.112/Anna),

No.49-G, East Arokiamadha Street,

Nagal Nagar Post,

Dindigul 624 003